PEOPLE v. STAPLES (2005)

 Defendant appeals from a judgment convicting him after a nonjury trial of assault in the third degree (Penal Law § 120.00[1] ).   Defendant failed to preserve for our review his contention that his waiver of a jury trial was improper (see People v. Badden, 13 A.D.3d 463, 785 N.Y.S.2d 748, lv. denied 4 N.Y.3d 796, 795 N.Y.S.2d 171, 828 N.E.2d 87;  People v. Brunson, 307 A.D.2d 323, 324, 762 N.Y.S.2d 509, lv. denied 100 N.Y.2d 641, 769 N.Y.S.2d 207, 801 N.E.2d 428).   In any event, that contention is without merit as the record reflects that defendant's waiver of a jury trial was both in writing and executed in open court (see N.Y. Const., art. I, § 2;  CPL 320.10[2];  cf. People v. Finkle, 262 A.D.2d 971, 972, 692 N.Y.S.2d 265, appeal dismissed 94 N.Y.2d 942, 709 N.Y.S.2d 498, 731 N.E.2d 154).

 Defendant also failed to preserve for our review his contention that Supreme Court improperly considered and convicted defendant of a lesser included offense of that charged in the first count of the indictment, assault in the first degree (Penal Law § 120.10[1] ).   It is undisputed that the court failed to advise counsel of its intention to consider lesser included offenses of those charged in the indictment.   Nevertheless, “[b]y failing to object when the verdict was rendered, defendant failed to preserve for our review his contention[ ] that the court erred in failing to inform counsel that it would consider the lesser included offense” (People v. Schrader, 251 A.D.2d 1032, 1033, 674 N.Y.S.2d 882, lv. denied 92 N.Y.2d 882, 678 N.Y.S.2d 29, 700 N.E.2d 567).   Moreover, defendant failed to request that summations be reopened so that he could address the lesser included offense that became the basis of his conviction (see People v. Jackson, 166 A.D.2d 356, 561 N.Y.S.2d 22, lv. denied 77 N.Y.2d 839, 567 N.Y.S.2d 208, 568 N.E.2d 657).

 We also reject defendant's contention that the evidence is not legally sufficient to support the conviction.   The People established that, while only one person used the knife that inflicted the stab wounds, defendant was part of a group of at least four people who acted with a community of purpose (see People v. Rosario, 199 A.D.2d 92, 93, 605 N.Y.S.2d 53, lv. denied 82 N.Y.2d 930, 610 N.Y.S.2d 182, 632 N.E.2d 492).  “[T]here is ‘no distinction between liability as a principal and criminal culpability as an accessory’ ” (People v. Rivera, 84 N.Y.2d 766, 770, 622 N.Y.S.2d 671, 646 N.E.2d 1098).   The conviction is based on legally sufficient evidence, and the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: